BACKGROUND

On October 27, 2022, the Ontario government announced Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022 (“Bill 26”).  Beyond finalizing the legal name change of the former Ryerson University to the now Toronto Metropolitan University, Bill 26 proposes new rules on how Ontario post-secondary institutions (“PSI” or “PSIs”) will handle sexual misconduct cases between employees and students. These new rules will come into force on July 1, 2023.

In this blog, I will look at some of those changes and the questions arising from them.

SUMMARY OF PROPOSED CHANGES

Bill 26 will amend the legislation¹ that regulates all publicly assisted PSIs and private career colleges in Ontario to include the following changes:

• • New terminology such as “sexual misconduct” and “publicly-assisted university” with statutory definitions;
  • New requirements for PSIs to have a sexual misconduct policy that has rules about employee-student sexual behaviour, as well as disciplinary measures if such rules are violated;
  • New PSI powers regarding the discipline, termination, and rehire of employees found to have engaged in employee-student sexual misconduct;
  • New limits on the use of non-disclosure agreements (NDAs) that usually prohibit any person related to the PSI from disclosing employee-student sexual misconduct; and
  • New prohibitions on the ability of an adjudicator or board to substitute the disciplinary measures imposed by a PSI on employees found to engage in employee-student sexual misconduct.

(i) What types of employee-student relationships will Ontario PSIs regulate under Bill 26?

Bill 26 requires PSIs to regulate and define employee-student sexual behaviour in a sexual misconduct policy. Although some studies² suggest that the power imbalance inherent in instructor-student relationships may lead to sexual violence, Bill 26 does not prohibit employee-student sexual relationships. Instead, Bill 26 only requires PSIs to have rules about the types of sexual behaviour between employees and students they will permit or not permit beyond what is already prohibited under laws such as the Criminal Code and Ontario Human Rights Code.

Bill 26 also does not require PSIs to define who is a student and who is an employee in its sexual misconduct policy. This is particularly relevant because of positions such as on-campus employment or graduate student instructors that can blur the lines of who is a student or employee. It will be interesting to see the policy changes that will be made at PSIs across Ontario regarding the types of behaviour and relationships that will be permitted and prohibited.

(ii) How will the ban on NDAs impact PSI sexual misconduct complaints?

Powerful employees of PSIs can potentially influence the grades, acceptance into other departments/programs, and career trajectories of students who attempt to or do actually complain of sexual misconduct. In recent years, bystanders have also become the subject of litigation³ for speaking out about sexual misconduct on campus.

Bill 26 intends to address these concerns and empower victims/bystanders who wish to disclose employee-student sexual misconduct, particularly by repeat offenders. It does this by introducing a controversial ban on the use of NDAs related to the disclosure of employee-student sexual misconduct for anyone connected to the PSI. At the Bill’s third reading, this ban was amended to include an exception for student-requested NDAs.

It remains to be seen if this change under Bill 26 will lead to more complaints or greater participation in employee-student sexual misconduct investigations at PSIs.

(iii) Will Bill 26 impact employee-student sexual misconduct investigations?

Bill 26 prohibits an arbitrator, board, or adjudicator from substituting the disciplinary measures that a PSI imposes on an employee found to have engaged in employee-student sexual misconduct. This prohibition ultimately limits an employee’s right to appeal a discharge or other disciplinary measures imposed by the PSI. Under Bill 26, PSIs are also prohibited from re-employing such employees after they are terminated from employment or resign.

Currently, PSIs often consider the findings of an investigation when deciding if and what corrective action should be taken when there is a violation of their policies. Given the absence of a right to appeal or the benefit of a subsequent hearing, it will be interesting to see if Bill 26 will impact how responding parties engage with PSI investigations and what, if any, impact Bill 26 will have on how PSIs handle employee-student sexual misconduct complaints and investigations.

We will continue to monitor Bill 26 and its impact on PSI sexual misconduct complaints, so check back for more updates.

¹ Ministry of Training, Colleges and University Act, RSO 1990, c M.19, and Private Career College Act, 2005, SO 2005, c 28, Sch L.

² Paskaran, L., Eerkes, D., & De Costa, B. (2022). What is the Role of Post-Secondary Institutions in Addressing Student-Instructor Relationships? Courage to Act: Addressing and Preventing Gender-Based Violence at Post-Secondary Institutions in Canada,   online (blog): Courage to Act. pages 13-15.
Click here to read the white paper.

³J. Gerster, “Trinidad court sides with former Ontario professor in defamation case” (13 May 2020), online: Global News, https://globalnews.ca/news/6935416/defamation-windsor-trinidad/

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